Australians for Sustainable Development Inc v Minister for Planning

[2011] NSWLEC 33

Land and Environment Court

New South Wales

Medium Neutral Citation:	Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33
Hearing dates:	31 January 2011, 1-3, 14, 17, 22 (written submissions) February 2011
Decision date:	10 March 2011
Jurisdiction:	Class 1
Before:	Biscoe J
Decision:	1. Proceedings dismissed; 2. Costs reserved. Unless a party applies within three working days for a different costs order accompanied by written submissions, respondents are to pay applicant's costs and first respondent is to pay those costs on an indemnity basis; 3. Exhibits returned.
Catchwords:	Judicial review - two project approvals in respect of contaminated Barangaroo site - whether approvals invalid or whether proponents should be restrained from carrying out project work - whether remedial action plans failed to comply with cl 17(1)(c) of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) - whether cl 17(1)(c) of SEPP 55 applicable to the carrying out of projects approved under Part 3A of Environmental Planning and Assessment Act 1979 - post trial amendment to SEPP 55 making cl 17 inapplicable to the subject project approvals - whether failure to comply with cl 7 of SEPP 55 - whether cl 7 applicable to part 3A projects at approval stage - whether failure to consider principles of ecologically sustainable development as part of the public interest - whether failure to make requisite inquiries and constructive failure to exercise jurisdiction - whether impermissible development as part of a project relating to the extraction of sandstone - costs where applicant would have succeeded but for amendment to SEPP 55 made by Minister post-trial and before judgment.
Legislation Cited:	Barangaroo Delivery Authority Act 2009 Broadcasting Act 1922 Contaminated Land Management Act 1997, s 15(1) Environmental Planning and Assessment Act 1979, ss 4, 75A, 75(2A), s 75I(2)(d), 75F, 75J, s 75O, 75R(2), 75R(3A), 145B, 145C, Schedule 6 cl 89 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Interpretation Act 1987, ss 5, 11 State Environmental Planning Policy No 55 - Remediation of Land, cll 4, 7, 8, 9, 17 State Environmental Planning Policy (Major Development) 2005 cll 6, 7, 8, 9
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 125 CLR 564 Aldous v Greater Taree City Council [2009] NSWLEC 17, 167 LGERA 13 Aon Risk Management Services Australia Pty Ltd v Australian National University [2009] HCA 27, 239 CLR 175 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 123 Baulkham Hills Shire Council v O'Donnell (1996) 69 LGRA 404 Belle Design Group Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 284, 136 LGERA 1 Birch v Allen (1942) 65 CLR 621 Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 116 Bob Blackmore Pty Ltd v Anson Bay Company (Australia) Pty Ltd (Court of Appeal, 23 March 1990, unreported Buck v Bavone [1976] HCA 24, (1975) 135 CLR 110 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Commissioner of Police v Ryan [2007] NSWCA 196, 70 NSWLR 73 Drake-Brockman v Minister for Planning [2007] NSWLEC 490 Foley v Badley (1984) 154 CLR 349 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Harrison v Schipp [2005] NSWCA 133 Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185, 171 LGERA 247 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 Imperial Chemical Industries of Australia and New Zealand v Federal Commissioner of Taxation (1972) 46 ALJR 35 Kelly v Jowett [2009] NSWCA 278; 76 NSWLR 405 Kennedy v Minister for Planning [2010] NSWLEC 240 at [77] - [79] Kostrzewa v Southern Electricity Authority of Queensland [1969] HCA 32, (1970) 120 CLR 653 Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32, 123 CLR 327 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Miltonbrook Management Pty Ltd v Shellharbour City Council [2004] NSWLEC 86 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, 162 CLR 24 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 273 ALR 327 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 259 ALR 429 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 Penrith City Council v Waste Management Authority [1983] HCA 22, (1990) 71 LGRA 376 Peters v Manly Municipal Council [2007] NSWCA 343 Plaintiff M 61/2010E v Commonwealth [2010] HCA 41, 272 ALR 14 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28,194 CLR 355 Puntoriero v Water Corporation [1999] HCA 45, 199 CLR 575 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30, 198 ALR 59 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213 Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 S J Connelly CPP Pty Ltd v Ballina Shire Council [2010] NSWLEC 128, 174 LGERA 335 Shire of Perth v O'Keefe (1964) 110 CLR 529 Stannic Securities Pty Ltd v Wyong Shire Council [2010] NSWLEC 249 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22, 88 CLR 100 Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 Warriewood Properties Pty Ltd v Pittwater Council [2010] NSWLEC 215 Warringah Shire Council v Raffles (1978) 38 LGRA 306 Williams v NSW Minister for Planning (NSW)(No 3) [2010] NSWLEC 204
Texts Cited:	Pearce & Geddes, Statutory Interpretation in Australia, 6th ed (2006) LexisNexis
Category:	Principal judgment
Parties:	Australians for Sustainable Developments Inc (Applicant) Minister for Planning (First Respondent) Lend Lease (Millers Point) Pty Ltd (Second Respondent) Barangaroo Delivery Authority (Third Respondent)
Representation:	Counsel: Mr J Kirk with Ms F Ramsay (Applicant) Mr J Griffiths SC with Mr H El-Hage (First Respondent) Mr N Williams SC with Ms A M Mitchelmore (Second Respondent) Mr R Lancaster SC with Ms C Spruce (Third Respondent) Solicitors: Environmental Defender's Office (Applicant) Department of Planning (First Respondent) Henry Davis York (Second Respondent) Clayton Utz (Third Respondent)
File Number(s):	40965 of 2010

Judgment

CONTENTS

Paragraphs
A.	INTRODUCTION	1-Dec
B.	BACKGROUND	13-60
Barangaroo	13-19
Barangaroo is contaminated	20-26
Part 3A EPA Act project approval process	27-60
C.	GROUND 2 - NON-COMPLIANCE WITH CL 17(1)(C) SEPP 55	61-195
Whether SEPP 55 applies despite the use of Part 4 language	84-112
Clause 9(d): category 1 remediation work	113
Whether cl 17(1)(c) is satisfied	114-116
SEPP 55 Guidelines	117-126
Consultants Guidelines	127-132
Core Elements of a RAP	133-139
The Overarching RAP	140-152
Audit of Overarching RAP	153-158
Basement Car Parking RAP	159-170
Auditor’s letter re Basement Car Parking RAP	171-181
Condition of approval re HHERA	182
Conclusion	183-194
D.	GROUND 3: CL 7(1)(B) AND (C) SEPP 55	195-234
Whether cl 7 applies to Pt 3A approvals	201-216
“Satisfied”	217-234
E.	GROUND 5: FAILURE TO CONSIDER ESD PRINCIPLES AS AN ELEMENT OF THE PUBLIC INTEREST	235-252
F.	GROUND 6: FAILURE TO MAKE ENQUIRIES	253-260
G.	GROUND 1 - IMPERMISSIBLE DEVELOPMENT AS PART OF THE EARLY WORKS PROJECT	261-297
Characterisation of purpose	270-273
The facts	274-285
Conclusion	286-297
H.	COSTS	298-308
I.	ORDERS	309

A. INTRODUCTION

1. The applicant, Australians for Sustainable Development Inc, seeks judicial review of two decisions of the first respondent, the Minister for Planning ( the Minister ), to grant approval to the carrying out of two projects at Barangaroo, adjoining the Sydney central business district, made under s 75J of the Environmental Planning and Assessment Act 1979 ( EPA Act ):

(a)   a decision dated 2 November 2010 to approve major project application MP10_0023 in respect of the bulk excavation, remediation and construction of a basement car park ( Basement Car Parking Approval ). The proponent is the second respondent, Lend lease (Millers Point) Pty Ltd ( Lend Lease );

(b)   a decision dated 8 November 2010 to approve major project application MP10_0047 in respect of Barangaroo Headland Park and Northern Cove (Early Works) ( Early Works Approval ). The proponent is the third respondent, the Barangaroo Delivery Authority ( BDA ).

1. The applicant raised six grounds of challenge in its pleading but no longer presses Ground 4. The grounds pressed are as follows:

• Ground 1 - Impermissible development as part of the Early Works Project relating to the extraction of sandstone.
• Ground 2 - Failure to comply with cl 17(1)(c) of State Environmental Planning Policy No 55 - Remediation of Land ( SEPP 55 ) with respect to the carrying out of the two projects in that there is no plan of remediation approved by the consent authority prepared in accordance with the contaminated land planning guidelines.
• Ground 3 - Failure to comply with cl 7(1)(b) and (c) of SEPP 55 in relation to the two project approvals relating to what the consent authority must be satisfied of in consenting to the carrying out of development.
• Ground 5 - Failure to consider the principles of ecologically sustainable development as part of the public interest.
• Ground 6 - Failure to make requisite inquiries and constructive failure to exercise jurisdiction (this is closely related to Ground 5).

1. Ground 1 is discrete and this judgment addresses it last. Grounds 2, 3, 5 and 6 relate to one core factual issue: the way in which contamination and remediation issues have been dealt with in the approval process. Contamination is significant in relation to both soil and groundwater. There are toxins from the original use of the site as gasworks. Consequently, remediation is required in relation to the whole Barangaroo site.

1. At the centre of this factual issue is whether remedial action plans ( RAPS ) prepared to deal with the contamination are in accordance with the contaminated land planning guidelines referred to in cl 17(1)(c), and whether they have been approved by the Minister as provided for in that clause. There is an overarching RAP for the whole Barangaroo site dated 1 June 2010 ( Overarching RAP ) which foreshadowed more specific RAPS for particular sites. Despite that intention and the fact that the Director General of Planning's environmental assessment requirements under s 75F(2) of the EPA Act required the development of site specific RAPS, there is no site specific RAP for the Early Works Project although there is one dated 2 June 2010 for the Basement Car Parking Project ( Basement Car Parking RAP ).

1. The applicant places Ground 2 at the forefront of its submissions. Clause 17(1)(c) of SEPP 55 mandates that all remediation work must be carried out in accordance with "in the case of a category 1 remediation work-a plan of remediation, as approved by the consent authority, prepared in accordance with the contaminated land planning guidelines".

1. The "category 1 remediation work" referred to in cl 17(1)(c) is described in cl 9 of SEPP 55. The applicant relies on cl 9(d): "development for which another State environmental planning policy ...requires development consent". The applicant says that consent was required by State Environmental Planning Policy (Major Projects) 2005, as it was then called ( Major Development SEPP ). The "contaminated land planning guidelines" referred to in cl 17(1)(c) are the State government's guidelines entitled "Managing Land Contamination Guidelines SEPP 55 - Remediation of Land" ( SEPP 55 Guidelines ). They require a RAP to be prepared by an appropriately qualified consultant in accordance with the Environmental Protection Authority's "Contaminated Sites: Guidelines for Consultants Reporting on Contaminated Sites" ( Consultants Guidelines).

1. The applicant claims that the RAPS do not comply with the SEPP 55 Guidelines as informed by the Consultants Guidelines because they are incomplete in that they do not provide site specific criteria as to acceptable levels of contamination and in other respects.

1. In addition to declaratory relief, the applicant seeks injunctive relief preventing Lend Lease and BDA proceeding with the two projects. This relief is sought on two bases: the invalidity of the project approvals, and because (pursuant to Ground 2) to proceed with the carrying out of the projects would conflict with the requirements of SEPP 55.

1. The respondents contend, among other things, that cll 17(1)(c) and 7 are inapplicable and in any event have been complied with. The respondents broadly adopt each other's submissions subject to three express qualifications by the Minister.

1. I would have upheld Ground 2, rejected the other grounds and granted relief.

1. However, on 2 March 2011, about two weeks after the completion of he hearing, there was an extraordinary development which spelt the death knell of Ground 2. The Minister made an order under s 75R(3A) of the EPA Act amending SEPP 55 by providing that cl 17 and a closely related provision, cl 8(4), do not apply to these two projects. Accordingly, I must reject Ground 2 and dismiss the proceedings.

1. The applicant would have succeeded in the proceedings on the basis of Ground 2 but for the 2011 amendment. This is relevant to the question whether the respondents should pay the applicant's costs and, given the lateness of the 2011 amendment, whether the Minister should pay those costs on an indemnity basis. I therefore propose to set out my reasons why the applicant would have succeeded on Ground 2 but for the 2011 amendment. I will also address the costs question.

A. BACKGROUND

Barangaroo

1. The Basement Car Parking Project and the Early Works Project involve the carrying out of work at Barangaroo, which is located at Miller's Point on the northern end of Darling Harbour adjoining the north-western edge of the Sydney central business district. Barangaroo has an area of 22 hectares with 1.4 kilometres of harbour foreshore on its western and northern sides. The majority of the Barangaroo site is owned by BDA, with other government entities owning land within the site.

1. Currently, Barangaroo is covered by hard surfacing, including concrete and bitumen, with only a few structures and large light towers. A cruise passenger terminal is located on the site. The proposed works will expose contaminated or potentially contaminated soil.

1. Barangaroo has been identified for urban renewal by the NSW State government. The redevelopment proposed by the concept plan approved under Part 3A of the EPA Act provides for approximately half of Barangaroo, comprising the northern and western parts, to be dedicated to parkland and public open space with a new Headland Park and Northern Cove at the northern end; and about 489,500 m 2 of commercial, residential, tourism and community space in the development zone.

1. The Barangaroo Delivery Authority Act 2009 constituted BDA and gave BDA responsibility for the development of Barangaroo. Section 3 states the objects of the Act:

The objects of this Act are as follows:

(a) to encourage the development of Barangaroo as an active, vibrant and sustainable community and as a location for national and global business,

(b) to create a high quality commercial and mixed use precinct connected to and supporting the economic development of Sydney,

(c) to facilitate the establishment of Barangaroo Headland Park and public domain land,

(d) to promote the orderly and sustainable development of Barangaroo balancing social, economic and environmental outcomes,

(e) to create in Barangaroo an opportunity for design excellence outcomes in architecture and public domain design.

1. On 20 December 2009, the Premier announced that Lend Lease had been selected as the developer of Stage 1 comprising Blocks 1-4 on the southern portion of the site. On 5 March 2010, a contract was entered into between BDA and Lend Lease for the development of Stage 1.

1. BDA's Early Works Project is at the northern end of Barangaroo where it is proposed to build Headland Park in two stages: the Early Works and the Main Works. The Early Works include extraction of up to 60,000 m 3 of sandstone from beneath the existing concrete apron for reuse within Barangaroo, and the shaping and filling of Headland Park including receipt of some 150,000 m 3 of fill from the Basement Car Parking Project.

1. Lend Lease's Basement Car Parking Project is at the southern end of Barangaroo within what is sometimes called Stage 1. It involves bulk excavation and construction of a basement car park to accommodate up to 880 car parking spaces and associated services and infrastructure to support the initial phases of the future development of Stage1.

Barangaroo is contaminated

1. Barangaroo has been used for a range of shipping and industrial purposes over the years, a number of which involved contaminating activities, including the use of part of the site as a gasworks.

1. On 28 May 2007, the Environment Protection Authority ( EPA ) declared a portion of Barangaroo coinciding with the former gasworks as an investigation area, pursuant to s 15(1) of the Contaminated Land Management Act 1997, as it then was ( Investigation Order ). On 6 May 2009, the EPA declared some of that area to be a Remediation Site, pursuant to s 21 ( Remediation Site Declaration ).

1. Environmental site assessments of Barangaroo, including by Environmental Resources Management Australia (ERM) in 2007 and 2008, identified high levels of soil and groundwater contamination in the area associated with the former gasworks and its immediate vicinity and lesser contamination of soil elsewhere on the site. Exceedences of the assessment criteria for groundwater were also, with minor exceptions, located within the gasworks footprint. The ERM assessments recommended remedial measures to mitigate risks posed by contaminated soil and groundwater to human and environmental receptors, and to render Barangaroo suitable for the intended future mix of land uses.

1. Although the old gasworks site is the most severely contaminated, there is significant contamination of the areas of the subject project approvals which requires remediation because it constitutes risks to human health and the environment by exposing workers and others to contaminants during the carrying out of work and the completed works will also raise issues about potential exposure to contaminants.

1. As regards contamination and remediation of the Basement Car Parking Project site, the Director General's report to the Minister identified the key environmental issues as including remediation and waste management in relation to which it identified the actual and potential contamination and remediation measures as follows.

5.1 Remediation and Waste Water Management

Barangaroo has been used for wharf/port related activities since the 1800s. Original finger wharves were removed and the site was largely filled in 1961-1968 for the construction of longshore berthage, with some additional filling in the north of the site (area of former Southern Cove) in the late 1980s or early 1990s. The primary potential for contamination at Barangaroo is associated with uncontrolled fill used in various stages of site reclamation and potential migration of contamination from the former gasworks site located to the north and northeast. Based on soil and groundwater testing, the relevant contaminants of concern are:

Fill : could include metals, TPH, BTEX, PAHs, PCBs, OCPs, VOCs, SVOCs, asbestos.

Gasworks : could include metals, TPH, BTEX, PAHs, phenols, sulphate, cyanide, ammonia.

There is also potential for Acid Sulphate Soils (ASS) and hazardous building materials such as lead, PCBs, asbestos to be present.

It is important to note however, that no part of the site the subject of this Project Application falls within the DECCW Declaration Area associated with the former gasworks site. As detailed previously in this report, a separate Project Application will be submitted in the future for the remediation of this land.

The Overarching Remedial Action Plan for Barangaroo prepared by ERM and Remedial Action Plan Other Remediation Works (South) Area prepare by AECOM establish the endorsed remediation activities for Stage 1 of the Barangaroo development including the subject site. The proposed remediation works will be undertaken in conformance with these two RAPs and the detailed Human Health and Ecological Risk Assessment (HHERA).

The preferred remediation strategy for the Project Application Site is to remediate the contaminated soil which is either a source of groundwater contamination and/or a risk to human health. Therefore the remedial process is focused on soil remediation technologies. Active groundwater remediation is not currently proposed as the groundwater contamination will be addressed by removing the contaminated soil.

The treatment of contaminated material is proposed to be through the ex-situ solidification or stabilisation of materials. Chemical additives will be blended into the contaminated soil to reduce its toxicity and limit solubility and mobility. This is a proven method of treating a broad range of contaminants including petroleum hydrocarbons, PAHs and metals.

Suitably treated and excavated material will be re-used across the broad Barangaroo site to minimise the need to import fill for public domain works, and the creation of the Headland Park. The treated material will be validated to ensure suitability for use at the Headland Park, or any other parts of the Barangaroo site as appropriate (subject to further necessary approvals). Temporary stockpiling may be required across the Barangaroo site to store excavated and (where relevant) suitably treated material. Material unsuitable or unavailable for re-use on-site will be disposed offsite at a suitable waste management facility.

1. The contaminants referred to in the above quotation include asbestos. The acronyms for the contaminants referred to are explained in the Overarching RAP: TPH is total petroleum hydrocarbons; BTEX is benzene and some related compounds; PAH are polycyclic aromatic hydrocarbons; PCBs are polychlorinated biphenyls; OCPs are organochlorine pesticides; VOCs are not expressly defined but appear to refer to volatile organic compounds; SVOCs refer to semi volatile organic compounds.

1. As regards contamination and remediation of the Early Works Project site, the Director-General's Report to the Minister also identified the key environmental issues as including remediation and waste management, in relation to which it identified the actual and potential contamination and remediation measures as follows:

5.3 Contamination and Remediation

Previous environmental investigations conducted at Barangaroo have identified a number of contamination issues, principally associated with fill materials, natural soil and ground water within the footprint of a former gasworks (located in southern half of Barangaroo), which require remediation/management.

On the Headland Park site, limited contamination of fill materials was identified, being restricted to Total Petroleum Hydrocarbon (TPH), Polycyclic Aromatic Hydrocarbon (PAH) and metal impacted fill materials. No significant contamination of groundwater was identified.

In accordance with the site-wide Remediation Action Plan an Early Works Remedial Action Plan (RAP) is being prepared to document the procedures and standards to be followed in order to manage the risks posed by contamination anticipated to be encountered during the proposed Early Works. The following remediation/management approach is proposed to be adopted in the Early Works RAP.

...

The proposed Early Works RAP will be prepared and approved by the site auditor prior to the commencement of works on site. To mitigate any potential adverse contamination impacts arising from the proposed early works, the following mitigation measures will be employed by the Proponent:

• Adoption and implementation of an Early Works RAP prior to the commencement of works on site;
• Preparation of a Human Health and Ecological Risk Assessment (HHERA), to establish a risk-based criteria which formed part of a Site Acceptance Criteria for the Headland Park Site;

...

The Proponent has addressed these concerns [concerning contamination] in the PPR, which details that the EA for the Early Works Project Application has addressed contamination issues in accordance with all relevant DECCW guidelines, and independently audited by DECCW Accredited Site Auditor. A draft Detailed Remedial Action Plan (D-RAP) and draft Human Health and Ecological Risk Assessment (HHERA) has been prepared and submitted to the Site Auditor for review. Once the HHERA is finalised, the site criteria will be incorporated into a Detailed Remediation Work Plan (D-RWP) for the Headland Park.

...

At this stage of the process, the areas of the Headland Parks site shown in Figure 13 below have been identified as being subject to contamination. It should be noted that this represents approximately 15,000 m 3 in area and comprises an approximate in situ (unbulked) volume of 20,000 m 3 . These areas and volumes may, however, change as a result of the proposed additional delineation investigations and related revisions to the risk-based criteria.

Part 3A EPA Act project approval process

1. The case is concerned with project approvals under Part 3A (ss 75A - 752A) of the EPA Act . Part 3A was inserted by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005, most of which commenced on 1 August 2005.

1. Part 3A establishes a much less prescriptive regime than Part 4 for development assessment and approval and makes the Minister the approval authority for the "carrying out" of development that is declared under s 75B to be a project to which it applies by a SEPP or by order of the Minister published in the Gazette. The kind of development that may be declared includes "major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance": s 75B(2)(a).

1. One of the aims of State Environmental Planning Policy (Major Projects) 2005 ( Major Development SEPP ) (now called the State Environmental Planning Policy (Major Development) SEPP 2005) is "to identify development to which the development assessment and approval process under Part 3A of the Act applies": s 2(a). Another aim is to rationalise and clarify the provisions making the Minister the approval authority for development of "sites of State significance": s 2(e).

1. Under Part 3A of the EPA the Minister may approve a concept plan for a project: Division 3 (ss 75M - s 75Q).

1. The sequence of provisions of Part 3A for approval to carry out a project is set out in Division 2 as follows. The proponent may apply for the approval of the Minister to carry out the project: s 75E. The Director-General prepares and notifies the proponent of the Director-General's environmental assessment requirements ( EARs ): s 75F. The proponent prepares the environmental assessment ( EA ) and submits it to the Director-General: s 75H(1). The Director-General decides whether the EA is adequate for public exhibition: s 75H(2). The public make submissions with reference to the proponent's environmental assessment: s 75H(3) and (4). The Director-General may require the proponent to submit as a response to the issues raised in the submissions, a preferred project report ( PPR ) that outlines any proposed changes to the project to minimise its environmental impact and any revised statement of commitments: s 75H(6). The Director-General's report on a project ( DG Report ) is to be given to the Minister "for the purposes of the Minister's consideration of the application for approval to carry out the project" ( DG report ): s 75I(1). The report is to include the documents listed in s 75I(2) which include the EA and a statement relating to compliance with the EARs. The Minister is bound to consider the documents nominated in s 75J(2)(a) to (c). Those documents are the DG report and the reports, advice and recommendations contained in the DG report; any advice of the proponent's portfolio Minister if the proponent is a public authority; and any findings or recommendations of the Planning Assessment Commission following a review in respect of the project. It is unnecessary for me to express a view on dicta that the Minister is not bound to (but may) consider any other documents, such as the EA itself: Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 at [124].

1. On 22 March 2006 the Minister recorded his opinion under cl 6(1) of the Major Development SEPP that the Barangaroo development was of a kind described in cl 10(1)(d) of Schedule 2 of the SEPP; namely, development with a capital investment value of more than $5 million within an identified area, and was therefore a project to which Part 3A of the EPA Act applied.

1. On 9 February 2007 the Minister approved a concept plan for a project at Barangaroo under s 75O of the EPA Act . The concept plan has been modified on four occasions.

1. Under the concept plan as modified, Barangaroo has been divided into three development areas (from north to south): Headland Park, Barangaroo Central and Barangaroo South (also known as Barangaroo Stage 1).

1. On 12 October 2007 Barangaroo was rezoned to facilitate its redevelopment by an amendment to Schedule 3 of the Major Development SEPP which inserted a new Part 12. By cl 7 of Part 12 the site is divided into two zones: Zone RE1 Public Recreation to the north and Zone B4 Mixed Use to the south.

1. In 2010, approvals were sought for the carrying out of the Basement Car Parking Project and the Early Works Project.

1. The EA dated 23 June 2010 for the Early Works Project stated that the proposed early works will include the following components: site establishment including security arrangements; demolition works; site investigation; environmental protection measures; existing services modifications; heritage protection; extraction of up to 80,000 m 3 of sandstone (later reduced to 60,000 m 3 ); and the receipt, management and retention of up to 150,000 m 3 of fill from Stage 1.

1. A preliminary assessment accompanying the Basement Car Parking Project approval application dated 18 February 2010 stated that it sought approval for bulk excavation of basement areas to varying levels within Blocks 1 to 3; construction of basement car parking areas and indicative allocation of car parking spaces; demolition; remediation of contaminated material; and provision of sustainability infrastructure. It estimated that approximately 300,000 m 3 of material will be excavated and that consideration will need to be given to the presence of contaminated material and the need for any remediation where required in accordance with a RAP (or environmental management plan).

1. On 3 May 2010, the Director-General's EARs were issued for both projects under s 75F of the EPA Act . The EARs identified SEPP 55 as one of the relevant environmental planning instruments applicable to the site. They required to the EAs to address SEPP 55 as one of the "key issues" and to outline the nature and extent of any non-compliance with it and any justification for non-compliance. They included requirements that a site wide RAP and detailed works RAP for the relevant section of the site be prepared in accordance with the Consultants Guidelines; that the latter RAP must clearly demonstrate that the site will be remediated; and that the plans must be audited by an EPA accredited site auditor and include a site audit statement detailing the findings.

1. That position taken by the Director-General of the Department of Planning seems at odds with the position now taken by the Minister for Planning that cl 17(1)(c) of SEPP 55, which requires RAPS, is inapplicable.

1. In partial compliance with those requirements, a site wide RAP for Barangaroo dated 1 June 2010 ( Overarching RAP ), commissioned by BDA, was prepared by ERM. It was included in the EA for both project applications.

1. In addition, in relation to the Basement Car Parking Project, a site specific RAP dated 2 June 2010 commissioned by Lend Lease was prepared by AECOM Australia Pty Ltd ( Basement Car Parking RAP ) . I t was included in the EA for that project approval application.

1. No site specific RAP for the Early Works Project was finalised.

1. In June 2010, a site audit report on the Overarching RAP from an EPA accredited auditor was provided

1. On 3 June 2010 a letter from the same EPA accredited auditor relating to the Basement Car Parking RAP was provided. The letter stated that it did not constitute a site audit report or a site audit statement.

1. On or about 23 June 2010, the proponent's EA for the Early Works Project was submitted to the Department of Planning. From 14 July 2010 to 12 August 2010 it was publicly exhibited. The EA stated that (a) the Overarching RAP was determined by the site auditor to have fulfilled the requirements of SEPP 55 and the Consultants Guidelines and (b) it is considered that the requirements of SEPP 55 have been met by the Overarching RAP as confirmed by the site audit statement. As analysis of the site auditor's report will show (see below), the first statement was incorrect; and, as these reasons will show, the second statement was not supportable in terms of cl 17(1)(c) of SEPP 55.

1. On or about 21 June 2010 the proponent's EA for the Basement Car Parking Project was submitted to the Department of Planning. From 7 July 2010 to 5 August 2010 it was publicly exhibited.

1. A submission by the Department of Environment, Climate Change and Water ( DECCW ) to the Department of Planning dated 24 August 2010 concerning the Early Works EA stated:

The need to better identify the existence and extent of contaminated material which will be excavated to ensure appropriate treatment prior to placement at the headland park site. The proponent needs to ensure completion of and compliance with the relevant assessments and plans - i.e. Remediation Action Plan and Human Health and Ecological Risk Assessment, including addressing all the issues raised by the Site Auditor.

1. On or about 20 September 2010 Lend Lease responded to the issues raised in public submissions on the Basement Car Parking Project in a PPR submitted to the Department of Planning, which stated:

A Draft Detailed Remedial Action Plan (D-RAP) and Draft Human Health and Ecological Risk Assessment (HHREA) has been prepared and submitted to the Site Auditor for review. Once the HHERA is finalised, the site criteria will be incorporated into a Detailed Remedial Work Plan (D-RWP) for the Headland Park. In addition, the extent of contaminated material requiring excavation within the Headland Park Site will be defined by survey and will likely be based on additional delineation investigations.

1. Likewise, on 24 September 2010, BDA responded to the issues raised in public submissions on the Early Works Project in a PPR submitted to the Department of Planning.

1. In October 2010, the DG report for the Basement Car Parking Project, was provided to the Minister.

1. In November 2010, the DG report for the Early Works Project was provided to the Minister. It noted that, at the time of writing an Early Works RAP was being prepared and that it would be approved by the site auditor prior to commencement of works on site. In addition, it included timetabling for the preparation of various contamination and remediation studies and plans, including an Early Works RAP. The timetabling reflects that provided for in the Statement of Commitments in the PPR (set out below).

1. In fact, an Early Works RAP has not been finalised and provided to the Minister.

1. On 2 November 2010 the Minister granted approval to the carrying out of Basement Car Parking Project. The approval was expressed to apply (inter alia) to the proponent's Statement of Commitments set out in Schedule 3, subject to the conditions in Schedule 2.

1. On 8 November 2010 the Minister granted approval to the carrying out of the Early Works Project. The approval was expressed to apply (inter alia) to the proponent's Statement of Commitments set out in Schedule 3, subject to the conditions in Schedule 2.

1. A condition of each project approval required the proponent to "provide a copy of the Amended Remediation Action Plan and the Human Health and Ecological Risk Assessment to DECCW prior to implementation". Significantly, there was no provision for them to be provided to or approved by the Minister.

1. A condition of each approval required the development to be undertaken in accordance with (inter alia) the respective EA and PPR.

1. The following timetabling in BDA's statement of commitments under the heading "Contamination" shows that no finalised Early Works RAP is to be assessed and approved by the Minister:

Commitments	Timing
1. Adoption and implementation of an Early Works RAP prior to the commencement of works on site;	Prior to commencement of remediation works on site
2. Preparation of a Human Health and Ecological Risk Assessment to establish the risk-based criteria which form part of the Site Acceptance Criteria for the Headland Park site;	Prior to commencement of remediation works on site
3. Preparation and adoption of a Remediation Environmental Management Plan to document the monitoring and management measures required to control the environmental impacts of the Early Works and ensure the validation protocols are being addressed.	Prior to mobilisation onto the site for remediation works
4. Preparation and adoption of a Remediation Occupational Health and Safety Management Plan to document the procedures to be followed to manage the risks posed to the health of the remediation workforce.	Prior to mobilisation into the site for remediation works
5. Upon completion of the Early Works program, a validation report documenting the work undertaken during the Early Works program will be prepared by the Remediation Consultant to be submitted to the Site Auditor for certification that the Early Works have been carried out in accordance with the proposed Early Works RAP.	Prior to occupation of the site by future users
6. Reports as required by Commitments 1-5 above will be provided to the Site Auditor for review and to DECCW	During the remediation works as required

1. In relation to the Basement Car Parking approval, paragraph 1.3 of Lend Lease's Statement of Commitments stated:

The remediation works will be undertaken to make the site suitable for the proposed uses as envisaged under the Concept Plan.

Remediation works will be undertaken in conformance with the Overarching RAP (ERM) and the site specific RAP (AECOM).

A HHERA will be prepared and set to detail specific remediation works.

...

Lend Lease will obtain a Section B Site Audit Statement for the proposed remediation works and will provide a copy to DECCW prior to obtaining the relevant construction certificate.

1. In granting approval for the carrying out of the two projects, the Minister had before him documents totalling about 2300 pages in the case of the Basement Car parking Project and about 1,600 pages in the case of the Early Works Project, comprising in each case a Department of Planning briefing note and the attachments thereto, namely the:

(a)   DG report to which were appended the voluminous EA (notified by an electronic reference and on a compact disc), submissions, proponent's response to submissions, the Department of Planning's consideration of environmental planning instruments including SEPP 55, and recommended conditions of approval; and

(b)   project approval instrument

B. GROUND 2 - NON-COMPLIANCE WITH CL 17(1)(C) SEPP 55

1. Ground 2 is not a challenge to the validity of the project approvals. Rather, the applicant alleges that the proponents are intending to carry out work pursuant to the project approvals in breach of cl 17(1)(c) of SEPP 55 and seeks injunctive relief to prevent the alleged apprehended breach. Ground 2 does not depend upon SEPP 55 applying to the Project approvals, only to the carrying out of the works (as to the possibility of SEPP 55 applying to the approvals, see Ground 3).

1. As noted at [10] - [12] above and explained further when discussing costs below, the Minister's 2011 amendment to SEPP 55 made cl 17 and a closely related provision, cl 8(4), inapplicable to these two projects, thereby destroying Ground 2. It was on 2 March 2011 that the Minister exercised his power under s 75R(3A) of the EPA Act to amend SEPP 55 by an order published on the NSW legislation website, as follows:

1 Name of Order

This Order is the Environmental Planning and Assessment Amendment

(State Environmental Planning Policy No 55-Remediation of Land) Order 2011.

2 Commencement

This Order commences on the day on which it is published on the NSW legislation website.

3 Amendment of State Environmental Planning Policy No 55-

Remediation of Land

Clause 19A

Insert after clause 19:

19A Application of SEPP to certain development at Barangaroo subject to Part 3A approvals

(1) This clause applies to development that is the subject of the following project approvals under Part 3A of the Act:

(a) project application number 10_0023, approved by the Minister for Planning on 2 November 2010,

(b) project application number 10_0047, approved by the Minister for Planning on 8 November 2010.

(2) To avoid doubt, the following provisions of this Policy do not apply to the carrying out of development to which this clause applies:

(a) clauses 8 (4) and 17,

(b) any other provision of this Policy that prohibits or restricts the carrying out of that development.

1. It is unnecessary to consider whether the 2011 amendment has retrospective effect because cl 17 is concerned with the carrying out of remediation work and, as it happens, such work under the subject projects has not yet commenced.

1. But for the Minister's amendment, I would have upheld Ground 2. That is relevant to the question whether the respondents should be ordered to pay the applicant's costs. Consequently, I will set forth the reasons why I would have upheld Ground 2 but for the 2011 amendment. What follows therefore assumes that the 2011 amendment had not been made.

1. Until the 2011 amendment, SEPP 55 was last amended prior to the introduction of Part 3A of the EPA Act in August 2005. Therefore SEPP 55 uses the language of Part 4 of the EPA Act dealing with development assessment and approval, and not the language of Part 3A.

1. The important object and aims of SEPP 55 are set out in cl 2:

2 Object of this Policy

(1) The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land.

(2) In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:

(a) by specifying when consent is required, and when it is not required, for a remediation work, and

(b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and

(c) by requiring that a remediation work meet certain standards and notification requirements.

1. Clause 17(1)(c) of SEPP 55 provides:

17 Guidelines and notices: all remediation work

(1) All remediation work must, in addition to complying with any requirement under the Act or any other law, be carried out in accordance with:

...

(c) in the case of a category 1 remediation work-a plan of remediation, as approved by the consent authority, prepared in accordance with the contaminated land planning guidelines.

1. Clause 8(4) of SEPP 55 provides that:

8 Remediation work permissible

...

(4) A person who carries out a remediation work must ensure that clause 16 (if it applies) and clauses 17 and 18 are complied with in relation to the work.

1. Clause 7(1), to which Ground 3 relates, should also be considered here because there is an overlapping issue concerning the use of Part 4 language in both cl 17 and cl 7(1):

7 Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose

1. "Category 1 remediation work" referred to in cl 17(1)(c) is defined in cl 9. The applicant relies solely on cl 9(d). Clause 9 provides in part:

9 Category 1 remediation work: work needing consent

For the purposes of this Policy, a category 1 remediation work is a remediation work (not being a work to which clause 14 (b) applies) that is:

(a) designated development, or

(b) carried out or to be carried out on land declared to be a critical habitat, or

(c) likely to have a significant effect on a critical habitat or a threatened species, population or ecological community, or

(d) development for which another State environmental planning policy or a regional environmental plan requires development consent, or

...

1. In terms of cl 9(d), the applicant submits that the subject remediation work is development for which the Major Development SEPP, in cll 8(2) and 9(2) of Part 12 (entitled "Barangaroo site") of Schedule 3, requires development consent.

1. Under the Major Development SEPP the Barangaroo site is divided into two zones: Zone B4 Mixed Use and Zone RE1 Public Recreation: cl 7 of Part 12 of Schedule 3. The Early Works Project is to be carried out wholly or substantially within the Public Recreation Zone. Pursuant to cl 9(2) and (3), development for certain identified purposes may be carried out "with consent" within that zone but otherwise development is prohibited. The Basement Car Parking Project is to be carried out within the Mixed Use zone. Pursuant to cl 8(2), development may be carried out for any purpose "with consent" within that zone unless it is prohibited under cl 8(3).

1. Clauses 6 to 9 are among the clauses within Division 3 (titled "Provisions applying to development within Barangaroo site") of Part 12 of Schedule 3 of the Major Development SEPP. Clause 6 provides:

This Division applies with respect to any development within the Barangaroo site and so applies whether or not the development is a project to which Part 3A of the Act applies.

1. "Consent authority", referred to in cl 17(1) and cl 7 of SEPP 55, is defined in cl 10(1) of that SEPP in relation to a development application as follows:

10 Consent authority in relation to remediation works

(1) The consent authority in relation to a development application for consent to carry out a remediation work is:

(a) the person or authority that, in accordance with a provision made by an environmental planning instrument that applies to the land, is the consent authority for the development, or

(b) in default of any such provision:

(i) the council for the local government area in which the land is situated, or

(ii) the Western Lands Commissioner, if the land is within the unincorporated area.

(2) (Repealed)

This definition differs from the definition of "consent authority" in s 4 of the EPA Act .

1. "Development consent", referred to in cl 9(d) of SEPP 55, and "development application", referred to in the cl 10 definition of "development authority", are defined in s 4 of the EPA Act as follows:

development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.

development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.

1. Clause 4(1) of SEPP 55 defines the "contaminated land planning guidelines", referred to in cl 17(1)(c), as guidelines under s 145C of the EPA Act. They are the State Government's guidelines titled "Managing Land Contamination Guidelines SEPP 55 - Remediation of Land" 1998 ( SEPP 55 Guidelines ). Apart from their relevance to cl 17(1)(c), substantial compliance with the SEPP 55 Guidelines exempts a planning authority from liability for anything done or omitted to be done in good faith in exercising prescribed planning functions. In that regard, ss 145B and 145C of the EPA Act relevantly provide:

145B Exemption from liability-contaminated land

(1) A planning authority does not incur any liability in respect of anything done or omitted to be done in good faith by the authority in duly exercising any planning function of the authority to which this section applies in so far as it relates to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land.

(2) this section applies to the following planning functions:

(a) the preparation or making of an environmental planning instrument, including a planning proposal for the proposed environmental planning instrument,

(b) the preparation or making of a development control plan,

(c) the processing and determination of a development application and any application under Part 3A,

(d) the modification of a development consent,

(d1) the processing and determination of an application for a complying development certificate,

(e) the furnishing of advice in a certificate under section 149,

(f) anything incidental or ancillary to the carrying out of any function listed in paragraphs (a)-(e).

(3) Without limiting any other circumstance in which a planning authority may have acted in good faith, a planning authority is (unless the contrary is proved) taken to have acted in good faith if the thing was done or omitted to be done substantially in accordance with the contaminated land planning guidelines in force at the time the thing was done or omitted to be done.

(4) This section applies to and in respect of:

(a) a councillor, and

(b) an employee of a planning authority, and

(c) a public servant, and

(d) a person acting under the direction of a planning authority,

in the same way as it applies to a planning authority.

145C Contaminated land planning guidelines

(1) For the purposes of section 145B, the Minister may, from time to time, give notice in the Gazette of the publication of planning guidelines relating to contaminated land and that a copy of the guidelines may be inspected, free of charge, at the principal office of each council during ordinary office hours.

...

1. Paragraph 4.4.5 of the SEPP 55 Guidelines says that a RAP "must be prepared by an appropriately qualified consultant in accordance with the EPA's guidelines (1997b). For further information, see Chapter 3". Those 1997 guidelines are the Environment Protection Authority's ( EPA ) "Guidelines for Consultants Reporting on Contaminated Sites" ( Consultants Guidelines ).

1. The heart of the applicant's Ground 2 challenge is that in this case the RAPS do not comply with SEPP 55 Guidelines as informed by the Consultants Guidelines and therefore do not comply with cl 17(1)(c) of SEPP 55.

1. Section 75R(2) within Part 3A of the EPA Act provides:

75R Application of other provisions of Act

...

(2) Part 3 and State environmental planning policies apply to:

(a) the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and

(b) the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.

1. As s 75R(2)(b) provides that SEPPs apply to the "carrying out" of a Part 3A project (subject to an immaterial exception), the provisions of SEPP 55 are potentially applicable to Part 3A projects if they are referable to the "carrying out" of work. Clause 17(1)(c) of SEPP 55 is such a provision because it is expressly referable to the carrying out of work. The application of SEPP 55 according to its terms with respect to Barangaroo is confirmed by cl 3 in Part 12 (titled "Barangaroo Site") of Schedule 3 of the Major Development SEPP, which provides:

3 Relationship with other environmental planning instruments

The only environmental planning instruments that apply, according to their terms, to or in respect of development on land within the Barangaroo site are this Policy and all other State environmental planning policies except State Environmental Planning Policy No 1-Development Standards .

1. The steps in the applicant's argument are as follows:

(a) cl 17(1)(c) of SEPP 55 applies to the carrying out of the Early Works Project and the Basement Car Parking Project because remediation work required to be carried out as part of those projects are "category 1 remediation works" within the meaning of cl 9(d). Insofar as cll 17(1)(c) and 9(d) use Part 4 EPA Act language, an intention is manifest that they extend to the carrying out of work under a Part 3A approval;

(b)   there is no RAP approved by the consent authority and prepared in accordance with the SEPP 55 guidelines referred to in cl 17(1)(c); and

(c)   the proponents propose to carry out the remediation work in the absence of such a RAP in contravention of cl 17(1)(c).

1. The respondents submit that cl 17(1) of SEPP 55 does not apply to the carrying out of the work permitted by the approvals for the following reasons:

(a) cl 17(1)(c) is inapplicable to Part 3A remediation work because it uses Part 4 language of "consent authority", the definition of which in cl 10 does not include the Minister giving Part 3A approval;

(b) in any event, the approved work is not "category 1 remediation work" within the meaning of cl 9(d) because cl 9(d) also uses Part 4 language of "development consent", and cll 8 and 9 of the Major Development SEPP (on which the applicant relies) do not require "development consent" only "consent";

(a)   even if cl 17(1)(c) is applicable, it has been satisfied by the Overarching RAP strengthened, in the case of the Basement Car Parking Project, by the Basement Car Parking RAP (there is no site-specific Early Works RAP).

1. BDA, supported by Lend Lease, also makes the submission, which the Minister as well as the applicant contest, that the "plan of remediation" referred to in cl 17(1)(b) is not a "remedial action plan" (RAP) referred to in the SEPP 55 Guidelines. I reject the submission. In my opinion, the two expressions are synonymous. This is reflected in the SEPP 55 Guidelines [3.5.4] which states that a "RAP, or plan of remediation, should be based on the information from investigations and on the proposed land use".

Whether SEPP 55 applies despite the use of Part 4 language

1. SEPP 55 was made and (prior to the 2011 amendment) last amended before the introduction of Part 3A into the EPA Act in August 2005. Therefore, SEPP 55 uses Part 4 language because that was the only relevant statutory language when it was made. Clauses 17(1)(c) and 7(1) use Part 4 language (" consent authority"), which is defined in cl 10 in relation to a "development application", and cl 9(d) also uses defined Part 4 language ("development consent").

1. The question is whether the language of SEPP 55 is, as the applicant submits, generic - that is, capable of encompassing Part 3A notions - or, as the respondents submit, specifically crystallized and attaching only to Part 4 notions.

1. On the respondents' proposed construction, SEPP 55, which provides for a Statewide planning approach to the remediation of contaminated land is relevantly inapplicable. This may be thought surprising, particularly as the environmental assessment requirements (EARs) of the Director-General of the Department of Planning identified SEPP 55 as a relevant environmental planning instrument applicable to the Barangaroo site: see [39] above.

1. Words and expressions in a statutory instrument have the same meanings as they have in the Act under which the instrument is made, unless a contrary intention appears in the statutory instrument: ss 5, 11, Interpretation Act 1987. SEPP 55 is a statutory instrument made under the EPA Act.

1. "Development consent" is defined in s 4 of the EPA Act as "consent under Part 4 to carry out development". Therefore "development consent" in cl 9(d) means consent to carry out development under Part 4 of the EPA Act and not an approval to carry out a project under Part 3A unless a contrary intention appears in SEPP 55. Likewise, "consent authority" in cl 17(1)(c) has, in relation to a "development application", the meaning attributed to that expression in cl 10 which does not include the Minister granting approval under Part 3A unless a contrary intention appears. However, the definition of "consent authority" is not exhaustive as it is only "in relation to a development application" (a Part 4 term) and does not necessarily preclude a consent authority being the Minister with power to grant Part 3A project approval.

1. The applicant submits that a contrary intention to the definitions is evinced such that "development consent" in cl 9(d) should be construed as including a Part 3A approval and "consent authority" in cl 17(1)(c) and cl 7(1) should be construed as including the Minister empowered to approve under Part 3A.

1. If the statutory definition of "development consent" is put to one side for a moment, the term can be read in one of two ways. One is the purely Part 4 concept. The other is the ordinary, generic meaning of consent for development. A Part 3A approval is a consent for development in the generic sense even though Part 3A prefers alternative language. Examples of the use of "development consent" in the generic sense appear in documents in evidence using the terms "development consent" and "consent authority" in the context of the subject Part 3A approvals, including the Director-General's reports to the Minister; and even experienced counsel in Part 3A cases, including this one, occasionally slip into using such terms.

1. Where the Major Development SEPP uses a generic term such as "consent", it clearly includes a Part 3A approval: eg cl 14 of Part 12 of Schedule 3 The Major Development SEPP plainly is intended to incorporate references to both Part 4 and Part 3A. The applicant submits that the same reading can be given to SEPP 55. That is the burden of the applicant's contrary intention submission.

1. In my view, the following factors support that contrary intention, substantially as submitted by the applicant.

1. First, the legislature plainly intended in s 75R(2) that at least some SEPPs would apply to the carrying out of work under Part 3A as at August 2005 when Part 3A commenced. This stops short of saying that s 75A(2) is a deeming provision, that is, deeming that all references to Part 4 language in a SEPP should be construed as Part 3A language. If the respondents are right on their rigorous adherence to Part 4 language not being relevant to Part 3A projects, then most SEPPS in force when Part 3A commenced will not apply to Part 3A projects because they tended to use Part 4 language, which was the only relevant statutory language.

1. It is reasonable to suppose that the legislature intended s 75R(2) to be a meaningful provision and that provisions of SEPPs in force when Part 3A commenced would not automatically be outside its ambit merely because these SEPPS used the only language known to them, being Part 4 language.

1. Second, the object of SEPP 55 is "to provide for a Statewide planning approach to the remediation of contaminated land": cl 2(1). In particular, SEPP 55 "aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment by requiring that a remediation work meet certain standards and notification requirements": cl 2(2)(c). Those two provisions are supportive of a generic, State-wide approach to remediation.

1. Third, cl 19(1) of SEPP 55 provides that if SEPP 55 is inconsistent with another State environmental planning policy, SEPP 55 prevails (subject to immaterial exceptions). Clause 19(1) and cl 2 in combination manifest an intention that SEPP 55 is a generic, state-wide, fundamental, overriding SEPP in the area of contamination and remediation.

1. Fourth, cl 17(1)(c) clearly enough applies to category 1 remediation work in a Part 3A EPA Act project of the kinds referred to in cl 9(b) and (c). The respondents, however, say that cl 17(1)(c) cannot apply to remediation work of the kind referred to in cl 9(d) because it uses the words "development consent", which is a defined Part 4 EPA Act term. It is reasonable to ask why cl 17(1)(c) would have been intended to apply to some kinds of category 1 remediation works referred to in cl 9 but not where cl 9(d) applies. There is no obvious reason.

1. Sixth, cl 13(1)(b) of SEPP 55 suggests that SEPP 55 covers "State significant development", which used to be a Part 4 concept but became a Part 3A concept upon the introduction of Part 3A. Clause 13(1)(b) provides:

a category 1 remediation work is identified as advertised development, unless the remediation work is ...State significant development.

1. SEPP 55 is a 1998 instrument and, prior to the introduction of Part 3A of the EPA Act in 2005, "State significant development" required development consent under Part 4: see the repealed s 76A(3)(b). At that time "State significant development" was defined in the now repealed s 76A(7)(b)(ii) to include:

State significant development is:

...

(b) particular development, or a particular class of development:

...

(ii) that, in the opinion of the Minister, is of State...environmental planning significance...

1. When Part 3A was enacted, s 76A was simultaneously repealed and "State significant development" disappeared from the Part 4 lexicon. However, a provision simultaneously appeared in Part 3A in s 75B(2) which describes the kinds of development that may be declared to be a project to which Part 3A applies including one kind which is substantially the same as that appearing in the old s 76A(7)(b)(ii), namely, "major infrastructure or other development that, in the opinion of the Minister, is of State environmental planning significance".

1. One of the stated aims of the Major Development SEPP is to rationalise and clarify the provisions making the Minister the approval authority for "sites of State significance".

1. Clause 13(1)(b) of SEPP 55 by its reference to "State significant development" suggests that Part 3A development is governed by SEPP 55, which assists the conclusion that "development consent" in cl 9(d) should be construed as including a Part 3A approval.

1. That conclusion is confirmed by cl 89 of Schedule 6 of the EPA Act , which is a savings and transitional provision relating to the operation of Part 3A. Clause 89 provides :

89 State significant development matters

(1) If a development application for State significant development is pending on the commencement of Part 3A of this Act, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to this Act by Schedule 1 to the 2005 Amending Act had not been made.

(2) A reference in any Act or instrument to State significant development within the meaning of this Act is taken to be a reference to a project to which Part 3A of this Act applies.

1. Clause 89(1) illustrates that Part 3A of the EPA Act first replaced the previous provisions dealing with State significant development, which were encompassed by SEPP 55. The effect of cl 89(2) is that the reference in cl 13(1)(b) of SEPP 55 to "State significant development" should be read as a reference to a project to which Part 3A applies. Consequently, SEPP 55 can be taken to refer to Part 3A projects, subject to any limitation arising from the terms of s 75R(2) (considered below in the context of Ground 3).

1. On the respondents' construction, the reference to "State significant development" in cl 13(1)(b) seems to me to be superfluous. This sits unhappily with the principle that a court "construing a statutory provision must strive to give meaning to every word of the provision": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28,194 CLR 355 at [7].

1. Sixth, the contrary intention finds some support in the principle that legislation should be construed as "always speaking"- that is, as ambulatory, thereby embracing future changes in subject matter - unless it evinces a different intention. The principle casts some light on the issue in the present case, namely, how one reconciles, if at all, the old language of SEPP 55 with the new part 3A concepts introduced subsequently.

1. Two High Court cases illustrate the application of the "always speaking" principle. In Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32, 123 CLR 327 there was a question whether a statutory reference to the power of a council to supply "gas" included the supply of liquefied petroleum gas. The legislature had in contemplation only coal gas when the Act was passed because it was the only type of gas then available. The High Court by majority considered that the word "gas" was used in its generic sense and was thus not limited to coal gas. In Imperial Chemical Industries of Australia and New Zealand v Federal Commissioner of Taxation (1972) 46 ALJR 35 Walsh J had decide whether an operation undertaken by the appellant taxpayer constituted "mining" within the meaning of a tax Act thereby entitling the taxpayer to a deduction for its expenditure. When the word "mining" was inserted in the Act, that operation was not known in Australia. His Honour reasoned that if it had been asked, when the word was being included in the Act, whether this sort of operation was a mining operation, the answer would have been in the affirmative. Accordingly, he held that the activity fell within the meaning of the word. On the Imperial Chemical approach, it may be asked in the present case whether the maker of SEPP 55 would have intended to include Part 3A concepts in the SEPP 55 language if the maker had known about them (the intention, of course, must be objectively ascertained). An affirmative answer seems reasonable.

1. The respondents suggest that assistance my be found in authorities concerning whether an expression in a regulation has the same meaning as in the Act under which it was made at the time the regulation was made or at the time when the meaning of the regulation is being considered. The second approach is supported by Birch v Allen (1942) 65 CLR 621. The first approach is supported by Kostrzewa v Southern Electricity Authority of Queensland [1969] HCA 32, (1970) 120 CLR 653, at least per Barwick CJ (who did not refer to Birch ). In Belle Design Group Pty Ltd v Woollahra Municipal Council [2004] NSWLEC 284, 136 LGERA 1, Bignold J held that when the issue of the validity of an instrument is in question, its meaning is fixed at its date of making. See the discussion in Pearce & Geddes, Statutory Interpretation in Australia , 6 th ed (2006) LexisNexis at [6.32] - [6.57]. It is unnecessary to engage in this debate because it is not quite the issue in the present case where it is not so much which meaning is picked up but how to reconcile the old language of SEPP 55 with new language of Part 3A subsequently introduced.

1. Seventh, the applicant's contrary intention construction is consistent with cl 17(1)(c) and 7(1) in that they do not speak of development consent or a development application but refer to "consent authority" which is defined in cl 10. The definition is not exhaustively about Part 4 because it is only expressed to be in relation to a development application (a Part 4 concept) and therefore does not necessarily exclude the possibility of a development authority being the Minister under Part 3A. There is no need to define who the consent authority is in relation to a Part 3A application for project approval because there can be only one: the Minister.

1. The respondents submit that their construction is supported by Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213 That case was concerned with cl 12 of the SEPP (Mining, Petroleum Production and Extractive Industries) 2007, which provided that: "Before determining an application for consent for development for the purposes of mining... the consent authority must" consider and evaluate certain matters. Preston CJ held (relevantly to Ground 3 in the present case) that SEPPS do not apply to the approval or disapproval of a project under part 3A. In case he was wrong, his Honour held (relevantly to Ground 2 which I am presently considering) that cl 12 only applied to Part 4 EPA Act development consents and not to Part 3A project approvals, at [109] - [111]:

109 ...I consider that in any event cl 12 of the Mining SEPP did not apply to the Minister's determination of the application for approval of the Project under Part 3A of the Act. Clause 12 uses the language found in Part 4 of the Act of "an application for consent for development", "consent authority" and "development". None of these words, phrases or terms are used in Part 3A where, instead, application is made for "approval" (not "consent") to carry out a "project" (not "development") and there is no "consent authority" but simply "the Minister" who may "approve" or "disapprove" of carrying out of the Project. It is to be noted that cl 12, containing this language of Part 4 of the Act, is contained within Part 3 of the Mining SEPP which is entitled "Development application - matters for consideration".

110 The use of the language and concepts of Part 4 of the Act in cl 12 of the Mining SEPP, but not the language and concepts of Part 3A of the Act, would appear deliberate and intended. The Mining SEPP was made after the insertion into the Act of Part 3A. The Mining SEPP does expressly refer to Part 3A in certain provisions. In the interpretation provision of cl 3(2) of the Mining SEPP, the word "approved" is defined to include any development or any use of land, not only for which any required development consent under Part 4 of the Act has been granted but also for which approval under Part 3A of the Act has been granted. Clause 19 of the Mining SEPP, containing savings and transitional provisions, again expressly distinguishes between an application for approval under Part 3A of the Act and an application for development consent under Part 4 of the Act.

111 In circumstances where the legislative draftsperson of the Mining SEPP has expressly referred in some of the provisions of Mining SEPP to the language and concepts of Part 3A of the Act, but not in cl 12 of the Mining SEPP, and has expressly referred in cl 12 to "determining an application for consent for development" by "a consent authority" but not "approving an application for approval of a project", cl 12 should be interpreted as referring only to determining an application for consent for development under Part 4 of the Act and not approving an application for approval under Part 3A of the Act.

1. Rivers , in my view, does not support the respondents' contention that cll 17(1)(c) and (7)(1) of SEPP 55 are inapplicable merely because they and cl 9(d) use Part 4 language. Indeed Rivers weighs against that construction. In Rivers Preston CJ was careful not to rest his decision simply on the use of Part 4 language in cl 12 of the Mining SEPP. The central plank of his Honour's reasoning was that the Mining SEPP had been made after the introduction of Part 3A and made a deliberate and intended distinction between development to which Part 3A and Part 4 applies. This central plank is absent in the present case. SEPP 55 was made and last amended before the introduction of Part 3A and, consequently, makes no distinction between Part 4 and Part 3A.

1. In my opinion, the contrary intention factors to which I have referred justify the conclusion that cll 17(1), (7)(1) and 9(d) of SEPP 55 are not inapplicable merely because they use Part 4 language.

Clause 9(d) : category 1 remediation work

1. Clause 9(d) of SEPP 55 defines "category 1 remediation work" by reference to development for which another SEPP requires "development consent". The applicant submits that that requirement is relevantly found in clauses 8(2) and 9(2) of Division 3 (titled "Provisions applying to development applying to Barangaroo Site") of Part 12 of Schedule 3 of the Major Development SEPP. The respondents dispute this on the basis that those provisions do not refer to "development consent" but to "consent". I accept the applicant's submission. Clause 6 of Division 3 says: "This Division applies with respect to any development within the Barangaroo site and so applies whether or not the development is a project to which Part 3A of the Act applies". Clause 6 is an indicator that cll 8 and 9 apply both to Part 3A development approvals and to Part 4 development consents and that the word "consent" in those provisions is employed generically to include both.

Whether cl 17(1)(c) is satisfied

1. On the assumption that cl 17(1)(c) applies, the parties are at issue as to whether it has been satisfied.

1. The applicant submits that it has not been satisfied because core elements of a RAP which complies with the SEPP 55 Guidelines have not been met.

1. The submission requires examination of the SEPP 55 Guidelines, the Consultants Guidelines (which are referred to in and inform the SEPP 55 Guidelines), the Overarching RAP, the Basement Car Parking RAP (there is no Early Works RAP), the auditors' reports relating to those RAPS, and certain conditions of the project approvals.

SEPP 55 Guidelines

1. The SEPP 55 Guidelines set out how a planning authority is to deal with contamination issues in the context of SEPP 55, including what information is needed to make a decision. Its stated purpose "is to establish 'best practice' for managing land contamination through the planning and development control process. The Guidelines explain what needs to be done to show that the planning functions have been carried out in good faith. Obviously they cannot provide a definitive answer in all cases, so planning authorities will also need to exercise their judgment".

1. This "good faith" reference concerns ss 145B and 145C of the EPA Act , set out at [76] above. They provide that a planning authority does not incur any liability in respect of anything done or omitted to be done in good faith by the authority in duly exercising any planning function of the authority in so far as it relates to contaminated land or to the nature and extent of contamination of land; and that the planning authority is (unless the contrary is proven) taken to have acted in good faith if the thing was done or omitted to be done "substantially in accordance with" the SEPP 55 Guidelines.

1. Under the heading "Key Principles", the SEPP 55 Guidelines state that the integration of land contamination management into the planning and development control process will "ensure that changes of land use will not increase the risk to health or the environment" and "provide information to support decision-making and to inform the community".

1. The SEPP 55 Guidelines say that:

Any significant departure from the Guidelines should be justified by demonstrating that the overall aims and principles have been met

1. In the present case the RAPS did not purport to justify any significant departure from the Guidelines.

1. The SEPP 55 Guidelines state that a RAP "must be prepared by an appropriately qualified consultant in accordance with [the Consultants Guidelines]. For further information see Chapter 3". Thus, the Consultants Guidelines inform the SEPP 55 Guidelines.

1. Chapter 3 of the SEPP 55 Guidelines is concerned with the information needed to make a decision on a proposed land use and requires sufficient information to be provided to consider options and make planning decisions. The decision process for land use changes is described as involving four stages: Stage 1 Preliminary Investigation, Stage 2 Detailed Investigation, Stage 3 Remedial Action Plan, Stage 4 Validation and Monitoring. The objective of a Stage 3 (RAP) is explained as follows: "The objective of an [sic] RAP, or plan of remediation, is to set objectives and document the process to remediate the site".

1. Paragraph 3.5 states: "Ultimately, a planning authority needs to be satisfied that a site is suitable for its proposed use or can and will be made suitable, based on what they know of the site. This will involve an evaluation or review of the information submitted by the proponent".

1. Paragraph 3.5.3 states:

A detailed investigation should provide information about the extent and degree of contamination. It should also include an assessment of the risk posed by the contaminants to health and the environment.

1. Paragraph 3.5.4 is important and provides:

3.5.4 Stage 3-Site Remedial Action Plan

An[sic] RAP, or plan of remediation, should be based on the information from investigations and on the proposed land use. The objectives of the remediation strategy and the recommended clean-up criteria should be clearly stated in the RAP. The RAP should demonstrate how the proponent or their consultant proposes to reduce risks to acceptable levels and achieve the clean-up objectives for the site.

It is important to note that the remediation of contaminated land is considered to be development and may require planning approval, even if the proposed land use does not require approval. If development consent is required, an [sic] RAP must be submitted with the development application for approval. Refer to SEPP No 55-Remediation of Land for further information.

Consultants Guidelines

1. As noted earlier, the SEPP 55 Guidelines require a RAP to be prepared in accordance with the Consultants Guidelines. The stated purpose of the Consultants Guidelines "is to ensure that reports prepared by consultants on the investigation and remediation of contaminated land contain sufficient and appropriate information to enable efficient review by regulators, the Site Auditor and other interested parties".

1. Consistently with the SEPP 55 Guidelines, the Consultants Guidelines identify four stages: 1 Preliminary Site Investigation; 2 Detailed site investigation; 3 Site remedial action plan (RAP); and 4 Site validation and ongoing monitoring.

1. Paragraph 2.3 states that the Stage 3 RAP should:

• set remediation goals that ensure the remediated site will be suitable for the proposed use and will pose no unacceptable risk to human health or to the environment
• document in detail all procedures and plans to be implemented to reduce risks to acceptable levels for the proposed site use
• establish the environmental safeguards required to complete the remediation in an environmentally acceptable manner
• identify and include proof of the necessary approvals and licences required by regulatory authorities.

1. The Consultants Guidelines contain a checklist "to help achieve a uniform approach" and state in bold:

Where a consultant chooses to deviate from the requirements in this checklist, clear reasons should be given and any significant deviations listed.

1. In relation to a RAP, the checklist includes requirements for (a) sampling analysis and data quality objectives; (b) a table listing all selected assessment criteria, references and rationale for an appropriateness of the selection of the criteria and assumptions and limitation of criteria; (c) a contingency plan if the selected remedial strategy fails; and (d) a clear statement that the consultant considers the subject site to be suitable for the proposed use.

1. In relation to the Basement Car parking Project, in my view the applicant has also not discharged its onus of proving that the Minister did not consider the substance of ESD principles. The material before the Minister contained an analysis of the presence of contamination and of the approach required to manage the risks. The approval contained conditions aimed at ensuring that measures were adopted and implemented in respect of anticipated remediation work to treat the contamination. The material before the Minister analysed the impact of the proposed work on water quality in Sydney Harbour. The Minister considered DECCW concerns regarding water quality impacts. The material included an analysis of water management measures to treat contaminated water and to protect the environment. The Minister considered the issue of climate change and sea level rise. ESD principles were addressed in the air quality impact assessment.

1. As discussed earlier in the context of Ground 2, it is true that in the case of each project approval the Minister did not have before him a document which specified the remediation criteria (goals) and that the Minister approved a condition of each approval whereby those criteria would be determined in the future in documents which would be sent to DECCW. I have held that did not comply with a requirement of the SEPP 55 Guidelines and therefore involved a breach of cl 171)(c). However, in my view, that does not also establish that the Minister was in breach of the obligation to consider the principles of ESD.

1. Accordingly, I do not accept Ground 5.

F. GROUND 6: FAILURE TO MAKE ENQUIRIES

1. Ground 6 is that even if the Minister did consider ESD principles, in the context of this case the Minister was also under a duty to make enquiries before deciding to grant the project approvals. Put another way, the Minister constructively failed to exercise his jurisdiction in granting the approvals by making decisions which, it is said, effectively abdicated responsibility for considering and determining contamination and remediation issues.

1. In Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170 Wilcox j held that:

The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

1. So expressed, in strictly limited circumstances a failure to inquire is a problem with the "manner" in which the decision-maker acted, which might lead to the conclusion that it was exercised in a manifestly unreasonable manner.

1. In M inister for Immigration and Citizenship v SZIAI [2009] HCA 39, 259 ALR 429 six member of the High Court said at [25]:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

1. Following that decision, the only basis on which a constructive failure to exercise jurisdiction on the basis of a failure to enquire might be found is where an administrative decision-maker does not make "an obvious finding about a critical fact, the existence of which is easily ascertained". The fact must be "critical" in the sense of critical to the outcome, so as to supply a sufficient link to the outcome to constitute a failure on the part of the decision-maker to exercise jurisdiction.

1. In an endeavour to bring the case within this principle, the applicant argues that the extent of contamination, the extent of remediation required and the proposed remediation actions to make the sites suitable for the proposed development area were critical facts on which the Minister did not have sufficient material before him; and that they could have been easily ascertained through more time to allow for finalisation of the relevant documents viz the Early Works RAP, the HHERA and associated documents.

1. The applicant has not identified an easily ascertainable existing fact, or any existing fact, that was critical to the outcome of the Minister's decision, but, rather, an issue in respect of which the Minister could have obtained more information. In my opinion, that does not suffice to enliven the principles referred to in SZIAI .

1. Accordingly, I do not accept Ground 6.

G. GROUND 1 - IMPERMISSIBLE DEVELOPMENT AS PART OF THE EARLY WORKS PROJECT

1. Ground 1 is a challenge to the validity of the Early Works Project approval on the ground that proposed remediation work involving the excavation of 60,000 m 3 of sandstone constitutes use for a purpose that is prohibited under the Major Development SEPP, namely, "extractive industries".

1. The respondents submit that the purpose is one that is permissible with consent under the Major Development SEPP, namely, "earth works" (the primary position of the Minister and Lend Lease) or "recreation area" (the primary position of BDA) or a purpose ancillary to one of those purposes.

1. Land within Barangaroo is classified into two zones: Zone B4 Mixed Use and Zone RE1 Public Recreation: see Part 12 of Schedule 3 of the Major Development SEPP .

1. The Early Works Project requires remediation work in Zone RE1 Public Recreation.

1. Development for any of the purposes listed in cl 9(2) of the Major Development SEPP may be carried out with consent on land within Zone RE1 Public Recreation, otherwise development is prohibited on land within that zone: cl 9(3). In order for development within Zone REI Public Recreation to be permissible, it must be able to be characterised as falling within the scope of a permissible purpose nominated in cl 9(2).

1. Relevantly, the permissible purposes listed in cl 9(2) include "earth works" and "recreation areas"; and do not include "extractive industries", which is a prohibited purpose.

1. By a different drafting route, "extractive industries" is also prohibited in Zone B4 Mixed Use: cl 8(2) permits development for any purpose with consent in that zone unless it is prohibited under cl 8(3). One of the prohibited purposes listed in cl 8(3) is "extractive industries".

1. A word or expression used in the Major Development SEPP has the same meaning as it has in the Standard Instrument (Local Environmental Plans) Order 2006 unless it is otherwise defined in Part 12 of the Major Development SEPP: cl 2(2) of Part 12 of Schedule 3 of the Major Development SEPP. The Dictionary to the Standard Instrument defines "extractive industry", "earthworks" and "recreation area" relevantly as follows:

extractive industry means the winning or removal of extractive materials (otherwise than from a mine) by methods such as excavating, dredging, tunnelling or quarrying, including the storing, stockpiling or processing of extractive materials by methods such as recycling, washing, crushing, sawing or separating, but does not include turf farming.

earthworks means excavation or filling.

recreation area means a place used for outdoor recreation that is normally open to the public, and includes:

...

(c) a public park, reserve or garden or the like, and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor).

1. The respondents also submit that, for the reasons discussed earlier in the context of Ground 3, SEPPs do not apply at the stage of the Minister approving the project under s 75J(1). Consequently, whether the extraction of sandstone is permitted in the Recreation Zone under the Major Development SEPP has no bearing, it is said, on the validity of the Early Works approval. Clauses 8 and 9 of Part 12 of Schedule 3 of the Major Development SEPP are within Division 3 titled "Provisions applying to development within the Barangaroo site". Clause 6 within that division states: "This Division applies with respect to any development within the Barangaroo site and so applies whether or not the development is a project to which Part 3A of the Act applies". If SEPPs do not apply at the approval stage so as to affect validity as s 75R(2) of the EPA Act indicates and Rivers has held, I consider that a developer would be vulnerable to restraint by an injunction from carrying out development that was prohibited by cll 8 or 9. However, it is unnecessary to provide a concluded view on this point because, in my view, the Ground 1 challenge fails for other reasons.

Characterisation of purpose

1. In characterising the purpose of the Early Works sandstone excavation work, the following legal principles are relevant:

(a)   in planning law, a use of land must be for a purpose. The purpose of development is the end which the land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 at [27].

(b)   the nature of the use must be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534 - 535; Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308;

(c)   the characterisation of the purpose of development must be determined objectively: Warriewood Properties Pty Ltd v Pittwater Council [2010] NSWLEC 215 at [45]; and must be done in a common sense and practical way: Chamwell at [45];

(d)   characterisation of the purpose of the use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310;

(e)   the question of whether a use for a particular purpose is subservient or incidental to another purpose, or whether it constitutes an independent use, is one of fact and degree: Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216 - 217; Peters v Manly Municipal Council [2007] NSWCA 343 at [21];

(f)   the task of characterisation is first and foremost a question of fact and degree: Penrith City Council v Waste Management Authority [1983] HCA 22, (1990) 71 LGRA 376; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157.

1. Nice questions can arise about whether a prohibited development is an independent prohibited development or is ancillary to permitted development. In Foodbarn Glass JA said at 161:

It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used...Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.

1. A claimed ancillary use must be subordinate to the permissible use, such that the ancillary use can be characterised as an aspect of the overall permissible purpose: Foodbarn at 161.

1. Because categories of development are expressed in terms of purposes, it is important to take account of the purpose for which the development in question is to be undertaken. In Baulkham Hills Shire Council v O'Donnell (1996) 69 LGRA 404 Meagher JA (with whom Samuels AP and Clarke JA concurred) said at 409 - 410:

Notwithstanding the principles laid down in Foodbarn , it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensures or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use.

His Honour added at 410:

If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing.

The facts

1. The Early Works EA conceived of the proposed early works as follows:

The proposed early works which are intended to facilitate the future development of Headland Park, a recreation area, are generally permissible with consent. They are consistent with the objectives of the zone and generally fall within the definition of works required to establish the parkland, a "recreation area".

In terms of the proposed sandstone extraction, it is considered that this land use is permissible as it is being undertaken as an ancillary component of the development of the park. The extracted sandstone is proposed to be used on site and is not therefore a separate commercial use in its own right.

1. The Early Works EA at [6.8] described the sandstone extraction as follows:

Early works activities associated with sandstone extraction include:

Extraction of up to 80,000 m 3 of sandstone for project re-use in landscaping and other structures. Sandstone "products" will include rough cut sandstone, dimensioned stone, oversized boulder/rubble/rock materials, drainage blanket and general fill including overburden. Nominal rough surface sections would typically weigh between 5 and 50 tonnes with a small number of unique elements weighing up to 150 tonnes.

In the order of 65% of all material extracted will be used to create the naturalistic shoreline and drainage blanket underlying the fill material. The remaining 35% will be required for other landscape features including those required at Stage 1.

Extracted sandstone will be stored within the Headland Park site.

1. The DG report contained a virtually identical statement except that it substituted "60,000m 3 " for "80,000m 3" . That is because in the meantime the Early Works PPR had reduced the amount of sandstone extraction to 60,000m 3 and reduced the extraction time by 25 per cent.

1. I do not think that the reference to "products" in the first dot point of the extract quoted above is to commercial or retail style products. Rather, it just indicates the product of the excavation.

1. The applicant's reliance on the use of 20,000 m 3 of extracted sandstone for building cladding is misplaced because although that was said in a noise and vibration assessment in Appendix 9 to the Early Works EA, later reports appended to the later Early Works PPR make clear that the building cladding use was eliminated, as the following analysis shows.

1. Appendix 9 to the Early Works EA was the Early Work Noise and Vibration Assessment dated 22 June 2010. In relation to sandstone extraction it stated at 6:

The extraction process is expected to proceed until the following requirements for the landscaping of the Headland Park area are achieved,

32,000 m 3 of rough cut sandstone for use along headland's water edge, in tidal pools

10,000 m 3 of dimensioned stone for use in seawalls and paving

20,000 m 3 of dimensioned stone for building cladding

1. On the basis of those statements in the EA and the noise and vibration assessment, the applicant submits that as a matter of fact and degree the sandstone extraction is a separate and independent use for the purpose of extractive industry having regard to the following:

(a)   BDA is going to create a range of products including 20,000 m 3 of dimensioned zone has building cladding;

(b)   some of the 35 per cent of the products are to be moved off the part of the Barangaroo site for which BDA is responsible to the Stage 1 part of the site for which Lend Lease is responsible, and for which presumably Lend Lease would otherwise have to pay.

1. Further, the applicant submits that the purpose is not recreation areas or ancillary to recreation areas because:

(a)   the recreation areas have not been approved albeit the approved concept plan says there is going to be a Headland Park;

(b)   in any case, as a matter of fact and degree, the use of some of the product for building cladding cannot be for the purpose of the creation of a recreation area.

1. Appendix 6 to the Early Works PPR is an updated Preliminary Environmental Construction Management Plan of September 2010 which states at p 7:

Early works activities associated with sandstone extraction include:

• Extraction of up to 60,000 of sandstone for project re-use in landscaping and other structures. Sandstone "products" will include rough cut sandstone, dimensioned stone, oversize boulder rubble, rock materials, drainage blanket and general fill including...
• The material extracted will be used to create the naturalistic shoreline and drainage blanket.
• Extracted sandstone will be stored within the Headland Park site at location shown in Appendix A.

1. Appendix 8 to the Early Works PPR is an updated Construction Traffic Management Plan dated 22 September 2010, which states at p 13 [4.6]:

4.6 Sandstone Block Excavation and Transportation

As part of the excavation for the Headland Park car park, on-site extraction of sandstone will take place as part of the early works. This Sandstone extraction will comprise approximately 60,000 cubic metres for various uses.

Approximately 50,000 cubic metres will be used on site to form the wave cut platform, tidal pools and rock outcrops within the headland park.

Approximately 10,000 cubic metres (25,000 tonnes) will be transported to external quarries for dimensioning of the sandstone blocks for use in retaining walls, walking paths, steps and stone columns. This will be returned to the site during later stages.

1. This is a clearer description of what will be happening with the 60,000 m 3 . The PPR and its appendices do not include any reference to the 20,000 m 3 referred to in the earlier noise and vibration assessment appended to the earlier EA, let alone any reference to using it for building cladding. It appears that the deletion of that 20,000 m 3 for building cladding explains the drop from 80,000 m 3 to 60,000 m 2 to which I have earlier referred.

1. Consequently, I consider that the Minister would have been in a position to conclude that the 60,000 m 3 will be used as set out in the appendices to the PPR and that the 20,000 m 3 previously proposed for cladding was no longer the current position.

Conclusion

1. Once building cladding is eliminated from the equation, the applicant nevertheless submits that an independent use of "extractive industries" is established by the proposal that up to 35 per cent of the sandstone will be required for other "landscape features" including those required for Stage 1 (Lend Lease's Area). I disagree.

1. The word "industry" in the term "extractive industries" identifies commercial activities carried on through industrial processes: Miltonbrook Management Pty Ltd v Shellharbour City Council [2004] NSWLEC 86 at [32] ; S J Connelly CPP Pty Ltd v Ballina Shire Council [2010] NSWLEC 128, 174 LGERA 335 at [51]. In contrast, "earth works" does not connote commercial activities carried on through industrial processes.

1. The extraction of up to 60,000 m 3 of sandstone permitted by the Early Works Approval is not, in my opinion, for the purpose of an "extractive industry" for the following reasons, substantially as submitted by BDA.

1. First, the extraction is not a "commercial activity". The purpose is to facilitate the creation of a public recreational park with a naturalised foreshore. It is a statutory function of BDA, a government agency, to develop and manage Headland Park so as to encourage its use by the public: s 14(1) Barangaroo Delivery Authority Act 2009.

1. Second, the extraction of sandstone is not to be carried on through industrial processes. In S J Connelly at [55] - [56] Craig J said:

The "industrial process" contemplated by cl 19 seems to me to require more than the carrying out of preparatory works and the maintenance of static stockpiles. An industrial process carries with it the concept of some continuity in process rather than the one-off deposition of material at a nominated location on the Site and which does not involve any form of processing of the material. It will involve concentrated and labour intensive activities over a relatively short period of time in order to move the soil and rock from the road to the Site. As the applicant submitted, those works that are involved, apart from the cartage of soil and rock, are essentially civil engineering works in preparing the Site to receive the material rather than some ongoing process of an industrial character.

If reference is made to the dictionary definitions which I have earlier quoted, the stockpiling on the Site of preload soil and rock is not being undertaken in the course of a particular branch of trade or manufacture nor is it being undertaken as part of a large-scale business activity.

1. Similarly, in the present case, the extraction of sandstone is not part of an ongoing process of an industrial character. It is a one-off activity and is not being undertaken in the course of a particular branch of trade or manufacture or as part of a large scale industrial activity.

1. Even if the permitted extraction of sandstone can properly be characterised as a use of land for the purpose of "extractive industry", I do not think it is an independent use. It is ancillary to use of the land for the purpose of facilitating the creation of a recreation area, Headland Park.

1. Where a part of a site is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. The same principle applies where the dominant and subservient purposes both relate to the whole and not to separate parts: Foodbarn at 161.

1. In determining whether a particular purpose is incidental to another purpose, the primary consideration is the relationship between the two uses: Bob Blackmore Pty Ltd v Anson Bay Company (Australia) Pty Ltd (Court of Appeal, 23 March 1990, unreported). In that case, the extraction of a gravel from a mining site was held to be ancillary or subservient to the use of an open cut coal mine, in circumstances where most of the gravel extracted was used for purposes which improved the use of the land as an open cut coal mine (such as surfacing roads to and from the mine, stabilising logging areas around the mine and erecting stoppings in mine shafts).

1. In the present case, the reason for extracting the sandstone is to enable Headland Park to be created. The use of the land for the extraction of sandstone is not a separate and independent use from the use of the land for the purpose of a recreation area. The purpose of extracting the sandstone is to create the use of the land as a recreation area. The sandstone extraction use subserves the creation of a recreation area use.

1. The applicant submits that the sandstone extraction cannot be viewed as ancillary to a recreation use (the park) because project approval for the park has not been granted. Concept plan approval for the park has been granted and the reason why project approval for the park has not been sought or granted is that it is a staged development with the early works going first. I do not think that the fact that the approval for the early works has preceded the anticipated project approval for the park affects the conclusion that the purpose of the sandstone excavation as part of the early works is for the purpose of that park or is ancillary to that purpose. If that is incorrect, I would alternatively conclude that the excavation is for the purpose of earth works or is ancillary to that purpose.

1. For these reasons, I do not accept Ground 1.

H. COSTS

1. As the applicant would have succeeded in the proceedings but for the Minister's post-trial 2011 amendment to SEPP 55, the question arises whether the respondents should be ordered to pay the applicant's costs and whether, having regard to the lateness of the amendment, the Minister should be ordered to pay those costs on an indemnity basis. I will give the parties the opportunity to make submissions on costs but, subject to consideration of any such submissions, I would make the following preliminary observations.

1. Subject to the rules of Court and to the Civil Procedure Act 2005, the Land and Environment Court has full power in civil proceedings to determine by whom, to whom and to what extent costs are to be paid, and may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98 Civil Procedure Act 2005. Parties are under an obligation to the Court, and in turn to the administration of justice, to assist the Court to further the just, quick and cheap resolution of the real issues in the proceedings: s 56(1), (3) and (4). These provisions reflect the fact that "the courts are concerned not only with justice between the parties, which remains the priority, but also with the public interest in the proper and efficient use of public resources": Aon Risk Management Services Australia Pty Ltd v Australian National University [2009] HCA 27, 239 CLR 175 at [23]. The resolution of disputes serves the public as a whole, not merely the parties to the proceedings: Aon at [113], Kelly v Jowett [2009] NSWCA 278, 76 NSWLR 405 at [57] - [58].

1. Although costs on the ordinary basis are the norm, it is common knowledge that they provide an inadequate indemnity. In order to award costs on an indemnity basis, there must be sufficient special or unusual circumstances connected with the litigation justifying such an award: Harrison v Schipp [2005] NSWCA 133 at [8] - [10]; Mead v Watson [2005] NSWCA 133 at [8] - [10]. The categories in which the discretion to award indemnity costs may be exercised are not closed: Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233.

1. The proceedings were commenced in late November 2010. The hearing commenced on 31 January 2011 and proceeded intermittently over six days concluding on 17 February 2011, followed by a supplementary written submission from the Minister on 22 February 2011. At the conclusion of the hearing, the proponents, with the acquiescence of the Minister and the applicant, requested that judgment be delivered in approximately two weeks. It was explained that the proponents had given some assurance to the applicant that they would not proceed with the work until the hearing but that if judgment could not be given within about two weeks it may be necessary for the matter to return to the Court for the parties to fight out an application by the applicant for an interlocutory injunction to restrain work pending judgment. It was in the interests of all parties that that should be avoided if possible.

1. On 2 March 2011, just before the expiry of that two week period and shortly before the anticipated date of publication of my judgment, the Minister exercised his power under s 75R(3A) of the EPA Act to amend SEPP 55 by order published on the NSW legislation website, so as to exclude the application of cl 17 and a closely related provision, cl 8(4), to these two projects only. This was the first amendment to SEPP 55 since Part 3A was introduced into the EPA Act in 2005. The amendment spelt the death knell of Ground 2 of the applicant's challenge. The order was in the following terms:

1 Name of Order

This Order is the Environmental Planning and Assessment Amendment

(State Environmental Planning Policy No 55-Remediation of Land) Order 2011.

2 Commencement

This Order commences on the day on which it is published on the NSW legislation website.

3 Amendment of State Environmental Planning Policy No 55-

Remediation of Land

Clause 19A

Insert after clause 19:

19A Application of SEPP to certain development at Barangaroo subject to Part 3A approvals

(1) This clause applies to development that is the subject of the following project approvals under Part 3A of the Act:

(a) project application number 10_0023, approved by the Minister for Planning on 2 November 2010,

(b) project application number 10_0047, approved by the Minister for Planning on 8 November 2010.

(2) To avoid doubt, the following provisions of this Policy do not apply to the carrying out of development to which this clause applies:

(a) clauses 8 (4) and 17,

(b) any other provision of this Policy that prohibits or restricts the carrying out of that development.

1. On 2 March 2011 the Minister arranged for the matter to be relisted before the Court, all parties attended and I was provided with a copy of the amending order. This development resulted in postponement of delivery of my reasons for judgment for a few days in order to take account of the new legal landscape.

1. An express object of SEPP 55 is to provide for a Statewide planning approach to the remediation of contaminated land. The effect of the 2011 amendment is to immunise the two subject developments at Barangaroo, and only those developments, from that Statewide approach, so far as concerns the safeguards in cl 17 of SEPP 55.

1. The Minister for Planning's 2011 instrument amending SEPP 55 stated that it was to "avoid doubt". However, the Director-General of the Department of Planning expressed no doubt in his May 2010 environmental assessment requirements (EARs) relating to these Barangaroo projects. The EARs identified SEPP 55 as a relevant environmental planning instrument and required the preparation of RAPS - for which cl 17(1)(c) of SEPP 55 provides: see [39] above. There is a tension between the Director-General's position as expressed in the EARs and the position taken in this litigation by the Minister for Planning and the other respondents that cl 17(1)(c) of SEPP 55 is inapplicable.

1. It is not the role of the Court to pass judgment on the merits of the Minister's decision to exercise his statutory power to amend a SEPP. But it may have costs consequences if the amendment is made after relevant legal proceedings have been commenced against the Minister raising an issue to which the amendment relates. Here litigation was on foot challenging the validity of the Minister's approval of projects or the lawfulness of the carrying out of approved projects on the basis that SEPP 55 had not been complied with. The Minister and the other respondents contested the challenge. The applicant would have achieved success in the proceedings but for the Minister's amendment to SEPP 55 made after the trial concluded. If the Minister wished to exclude these two developments from the application of cl 17 and cl 8(4), he could have exercised his power to make the amendment at any time after the commencement of the proceedings, if not before. The amendment changed the law on which the case had been fought. The timing of the amendment, almost two weeks after the conclusion of the hearing, has not been explained. Because the amendment was not made in a timely way, considerable legal costs and resources have been wasted by the applicant in relation to Ground 2. Resources of the Court have also been wasted.

1. In these special and unusual circumstances, the respondents are vulnerable to an order that they pay the applicant's costs and, because of the lateness of the amendment to the SEPP, the Minister is vulnerable to an order that he pay those costs on an indemnity basis.

1. I propose to reserve costs with the proviso that unless a party applies for a different costs order, accompanied by written submissions, within three working days, the order will be that the respondents pay the applicant's costs and that the Minister do so on an indemnity basis.

I. ORDERS

1. The orders of the Court are as follows:

1. The proceedings are dismissed.

2. Costs are reserved. Unless a party applies within three working days for a different costs order and the application is accompanied by written submissions, the order will be that the respondents are to pay the applicant's costs and the first respondent is to pay those costs on an indemnity basis.

3. The exhibits may be returned.

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Decision last updated: 24 March 2011